TIARE RAMIREZ, Plaintiff, v. WYNN LAS VEGAS, LLC, Defendant Case No. 2:19-cv-01174-APG-DJA United States District Court, D. Nevada Filed January 31, 2020 Counsel Christian James Gabroy, Kaine M. Messer, Gabroy Law Offices, Henderson, NV, for Plaintiff. Kelsey E. Stegall, Wendy M. Krincek, Littler Mendelson, PC, Las Vegas, NV, for Defendant. Albregts, Daniel J., United States Magistrate Judge ORDER This matter is before the Court on Plaintiff's Motion to Quash Third-Party Subpoenas (ECF No. 23), filed on December 20, 2019. Defendant filed a Response (ECF No. 24) on January 2, 2020 and Plaintiff filed a Reply (ECF No. 25) on January 9, 2020. The Court finds this matter properly resolved without a hearing. See Local Rule 78-1. I. BACKGROUND The parties are familiar with the facts of this matter and the Court will only repeat them here as necessary. This matter concerns the termination of Plaintiff's employment, which she claims violates the Family and Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) along with Nevada law. Defendant seeks information regarding Plaintiff's efforts to obtain employment following her termination via two third-party subpoenas directed at two post-Defendant employers - Caesars and Able Baker Brewing. Plaintiff seeks to quash the two subsequent employment subpoenas by arguing they are overly broad, invade Plaintiff's privacy, and are designed to harass or embarrass her. (ECF No. 23, 5-9). Defendant responds that the subsequent employment records are relevant to its failure to mitigate her alleged damages defense along with her ability to work with or without restrictions and accommodations. (ECF No. 24, 3). Plaintiff replies that the subpoenas are overly broad and her mitigation obligations do not justify the scope of the subpoenas. (ECF No. 25). II. DISCUSSION Federal Rule of Civil Procedure 26(b)(1) provides for broad and liberal discovery. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Id. The court may limit discovery if it is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive ... [or] the proposed discovery is outside the scope permitted by Rule 26(b)(1). Rule 26(b)(2)(C)(i-iii). Further, a court may limit discovery via Rule 26(c), which permits the court to issue a protective order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense when the party establishes good cause. When the discovery at issue is a subpoena on a nonparty, Rule 45 governs. “It is well established that the scope of discovery under a subpoena issued pursuant to Rule 45 is the same as the scope of discovery allowed under Rule 26(b)(1).” Painters Joint Committee v. Employee Painters Trust Health & Welfare Fund, 2011 WL 4573349 at *5 (D. Nev. Sept. 29, 2011). “[A] party lacks standing under Fed. R. Civ. P. 45[(d)(3)(A)] to challenge a subpoena issued to a non-party unless the party claims a personal right or privilege with respect to the documents requested in the subpoena.” G.K. Las Vegas Ltd. Partnership v. Simon Property Group, Inc., 2007 WL 119148 at* 4 (D. Nev. Jan. 9, 2007); compare In re Rhodes Companies, LLC, 475 B.R. 733, 740 (D. Nev. Apr. 30, 2012) (declining to adopt the “personal right or privilege” standing rule for motion to quash subpoenas). “A party's objection that the subpoena issued to the non-party seeks irrelevant information or imposes an undue burden on the non-party are not grounds on which a party has standing to move to quash a subpoenas issued to a non-party, especially where the non-party, itself, has not objected.” G.K. Las Vegas Ltd. Partnership, 2007 WL 119148 at* 4. “A party can, however, move for a protective order in regard to a subpoena issued to a non-party if it believes its own interest is jeopardized by discovery sought from a third party and has standing under Rule 26(c) to seek a protective order regarding subpoenas issued to non-parties which seek irrelevant information.” Fed.R.Civ.P. 26(c)(1); see also First Am. Title Ins. Co. v. Commerce Assocs., LLC, 2017 WL 53704, at *1 (D. Nev. Jan. 3, 2017). Preliminarily, the Court will clarify the scope of the dispute before it. Although Plaintiff mentions third-party subpoenas for medical records and educational records, it is clear from the parties' briefing that the meet and confer process is ongoing with respect to the medical records and that Defendant has agreed to withdraw the subpoenas for educational records issued to the University of Hawaii and University of Nevada, Las Vegas. (ECF No. 24, 4). Consequently, the Court will only rule on the ripe part of this dispute – the third-party subpoenas issued to Caesars and Able Baker Brewing for subsequent employment records. Plaintiff's Motion as to the educational records is denied without prejudice. Plaintiff seeks to quash the subpoenas at issue on several grounds. First, Plaintiff claims they are not relevant. In support of this argument, Plaintiff cites to non-binding case law from outside of this District – including those that utilized the discovery standard prior to the 2015 amendments of the Federal Rules of Civil Procedure. (ECF No. 23, 5-6). The Court is not persuaded that the information sought is not relevant to Defendant's mitigation defense or proportional to the need of this case. “When a request is overly broad on its face or when relevancy is not readily apparent ... the party seeking discovery has the burden to show the relevancy of the request.” McCall v. State Farm Mut. Auto. Ins. Co., 2017 WL 3174914, at *6 (D. Nev. July 26, 2017) (internal citations omitted). Here, Defendant has asserted a mitigation defense and it carries the burden of proving that Plaintiff has failed to properly mitigate her damages. Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995). The Court finds the request for compensation records, dates of employment, job descriptions, and performance documents to be relevant to the mitigation defense as Plaintiff obtained subsequent employment with Caesars approximately five months after her termination and then subsequently with Able Baker Brewing. In addition, Defendant may discover facts regarding Plaintiff's ability to perform her subsequent positions with or without restrictions. Importantly, the 2015 amendments to Rule 26 deleted the phrase “reasonably calculated to lead to the discovery of admissible evidence” and replaced it with language that better represents the phrase's original intent: “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Rule 26(b)(1). While her job performance at a subsequent employer – and whether it was with or without restriction or accommodation – may not be admissible at trial, that is not the Court's inquiry at this stage. As such, the Court finds that Defendant has carried its burden of demonstrating the relevancy of the limited subsequent employment records at issue here. Plaintiff also asserts that she has a privacy interest in her personnel records and maintains they are confidential in nature. However, while this may weigh towards standing to object to the third-party subpoenas, a privacy or confidentiality objection is easily resolved by the parties submitting a stipulated protective order for the court's approval. In fact, Plaintiff acknowledges the parties have been meeting and conferring on a protective order. (ECF No. 25). Similarly, the Court finds no merit to Plaintiff's allegation that the subpoenas are designed to harass her. Therefore, the Court does not find any privacy or confidential concerns warrant quashing the subpoenas at issue and instructs the parties to submit a stipulated protective order for its approval. In addition, Plaintiff relies on Cannata v. Wyndham Worldwide Corp., 2011 WL 3794254, at *3 (D. Nev. Aug. 25, 2011) in support of her argument that the two subpoenas are overly board. It is important to recognize the scope and limitation of that case as compared to the circumstances of this case. Indeed, Cannata involved sixty-six third-party subpoenas for both prior and subsequent employment records. It does not stand for the proposition that a Defendant can never get any employment records from third parties. Rather, it is an important reminder that parties must always carefully tailor a subpoena's scope, both temporally and substantively, and echoes the current proportionality analysis that the Court is required to conduct. “[T]he scope of discovery through subpoena is the same as that applicable to Rule 34 and other discovery rules.” Fed.R.Civ.P. 45 Advisory Committee Notes, 1970 Amendment; see also Hampton v. Steen, 2014 WL 2949302, at *3 (D.Or. June 27, 2014). Further, the 2015 amendments to Rule 26(b)(1) emphasize the need to impose “reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” After careful review of the subpoenas at issue, the Court notes that Plaintiff's allegation that the “subpoenas are not limited in any fashion in temporal scope of time or to specific types of documents” is clearly contradicted by the limitations set forth in Exhibit A. (ECF No. 23-3, 5 and 17). The limitations set forth do indicate an effort to meet the proportionality test and the Court finds that the subpoenas are not a mere fishing expedition. However, the Court finds that their scope exceeds what is proportional to the needs of this case. Specifically, Plaintiff claims she has already responded to Defendant's written discovery requesting subsequent earnings information. To the extent that her response was deficient, then Defendant should meet and confer and seek to compel that information in accordance with Rule 37 rather than attempt to circumvent Rule 33 or 34 with nonparty discovery. See, e.g., McCall, 2017 WL 3174914, at *6. Similarly, the Court finds that interview notes and hiring documents are not proportional to the mitigation defense in this case. The employment applications and leaves of absence records are discoverable and sufficient given the circumstances of this case. As such, the following language in Exhibit A shall be removed from the subpoenas: interview notes, hiring documents, time cards, salary history, and commission amounts paid. IT IS THEREFORE ORDERED that Plaintiff's Motion to Quash Third-Party Subpoenas (ECF No. 23) is granted in part and denied in part. IT IS FURTHER ORDERED that Defendant shall reissue the two subsequent employer subpoenas after narrowly tailoring them consistent with this Order.